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In the High Court of Gujarat at Ahmedabad

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In the High Court of Gujarat at Ahmedabad CR.A/975/2007 111/111 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 975 of 2007 With CRIMINAL APPEAL No. 976 of 2007 With CRIMINAL APPEAL No. 977 of 2007 With CRIMINAL APPEAL No. 978 of 2007 With CRIMINAL APPEAL No. 979 of 2007 With CRIMINAL APPEAL No. 980 of 2007 With CRIMINAL APPEAL No. 981 of 2007 With CRIMINAL APPEAL No. 984 of 2007 With CRIMINAL APPEAL No. 985 of 2007 With CRIMINAL APPEAL No. 986 of 2007 With CRIMINAL APPEAL No. 1049 of 2007 With CRIMINAL APPEAL No. 1188 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MOHD.PERVEZ ABDUL KAYUUM SHAIKH & ORS- Appellants Versus STATE OF GUJARAT & 1 - Opponents ========================================================= Appearance : MR SM VATSA with MS NITYA RAMAKRISHNAN, MR BM GUPTA, MS BENAZIR HAKIM & MR LR PATHAN for Appellants MR JM PANCHAL SPECIAL PUBLIC PROSECUTOR with MR KJ PANCHAL for Opponent No.1 State MR YN RAVANI for Opponent : 2 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date :29/08/2011 CAV JUDGMENT (Per : MR.JUSTICE D.H.WAGHELA) 1. All these appeals are preferred from the judgment dated 25.6.2007 of learned Special Judge (POTA) at Ahmedabad in Special POTA Case No.10 of 2003. Out of total 19 persons accused in the criminal case, 4 have been absconding and trial of 3 accused persons had been separated upon the provisions of the Prevention of Terrorism Act, 2002 (“POTA”, for short) being questioned in another forum. The remaining 12 accused persons who were tried have been convicted for various offences under the POTA, IPC and the Arms Act and sentenced to various terms of imprisonment ranging from 5 years to life with varying amounts of fine. With the record of case running into more than 10,000 pages, learned Special Judge has delivered an elaborate judgment running into 751 pages. During the course of trial, prosecution examined 122 witnesses and produced and proved 209 documents, besides 252 other documents which were exhibited and formed part of the record. The accused persons, appellants herein, examined eight witnesses and two witnesses were examined as court witnesses. For the sake of convenience, prosecution witnesses are referred herein as “PW”, defence witnesses are described as “DW” and court witnesses are mentioned as “CW” ; and the accused persons, appellants herein, are described herein as under: Sr. Name of the accused Described Appeal No. as No. 1 MOHMED ASGAR ALI A-1 986/07 2 MOHMED ABDUL RAUF A-2 984/07 3 MOHMED SHAFIUDDIN A-3 985/07 4 KALIM AHMED @ KALIM MULLA A-4 977/07 5 ANAS MACHISWALA A-5 980/07 6 MOHMED YUNUS SARESHWALA A-6 981/07 7 REHAN PUNTHAWALA A-7 978/07 8 MOHMED RIYAZ A-8 979/07 9 MOHMED PARVEZ SHAIKH A-9 975/07 10 PARVEZ KHAN PATHAN A-10 1049/07 11 MOHMED FARUQ A-11 1188/07 12 SHAH NAVAZ GANDHI A-12 976/07 2. Broad contours of the case are that, on 11.3.2003, one Shri Jagdish Tiwari, Viswa Hindu Parishad (VHP) leader of Ahmedabad, was fired at around 9.15 p.m. at his medical shop. His complaint was registered at Bapunagar Police Station as FIR I-C.R.No.101 of 2003 for the offences punishable under sections 307, 34 of IPC and section 25 (1) (a) (b) of the Arms Act. In another incident, Shri Haren Pandya, Ex-Home Minister of the Government of Gujarat, was shot at and found in his car near Law Garden, Ahmedabad in the early hours of 26.3.2003. Pursuant thereto, FIR bearing I-C.R.No.272 of 2003 was registered at Ellisbridge Police Station on the same day and initial investigation for two days remained with that police station. With the consent accorded by the Government of Gujarat vide Notification dated 26.3.2003 and with the consent of the Government of India vide Cabinet Secretary's Notification dated 28.3.2003, the case was transferred to the Central Bureau of Investigation (CBI) and then the case was re-registered by CBI on 28.3.2003. The investigating officer came to Ahmedabad by flight and started the investigation on the same date. Then the earlier case of attempt on the life of Shri Jagdish Tiwari was also transferred to CBI by Notification dated 28.4.2003 of the State Government and Notification dated 29.5.2003 of the Central Government. Thereafter, these two separate cases registered by the local police stations were treated as part of the same conspiracy to strike terror amongst a section of people and one chargesheet was filed for the criminal case which came to be registered as Special POTA Case No.10 of 2003. As a larger conspiracy to strike terror was alleged, provisions of POTA were invoked in the first case on 11.6.2003 and in the second case of murder of Shri Pandya on 2.6.2003. The cases were made over to Special Court on 8.9.2003. The Court framed charges (Ex.57) on 11.12.2003 against 15 accused persons for the offences punishable under sections 120-B, 302, 307, 201 read with section 120-B of IPC, sections 25 (1-B)(a) and 27(1) and section 5 of the Arms Act and under section 3 (1), 3 (2), 3 (3), 3 (4) and 4 of the POTA. The accused persons pleaded not guilty. The charges under POTA were required to be dropped against A-15, A-16 and A-17 at the instance of the Central POTA Review Committee and further proceeding against them had to be stayed pursuant to an order of the Supreme Court in Criminal Appeal No.1113 of 2005 in the case of Mohmad Hussain Abdul Rehman Shaikh v. Union of India. 3. After noting the prosecution case and submissions of learned counsel appearing on both sides the trial Court identified the following issues for its appearing on both sides, the trial Court identified the following issues for its determination: “(1) Whether the prosecution proves beyond reasonable doubt hatching of conspiracy of killing Hindu leader by the accused alongwith the absconding accused in the aftermath of Godhra riots to strike terror in a section of people, viz. Hindus and thereby committed offence under section 3 (1) of POTA and section 120-B of IPC? (2) Whether the prosecution proves beyond reasonable doubt that an attempt to the life of Shri Jagdish Tiwari by the accused on dt.11.3.2003 at Tilak Medical Store, Bapunagar, Ahmedabad was in pursuance of the said criminal conspiracy with an intention to kill him so as to strike terror and thus committed an offence under section 307 read with section 120-B of IPC and/or under section 3 (3) of POTA? (3) Whether the prosecution proves beyond reasonable doubt that in pursuance of the said criminal conspiracy, A-1 Asgar Ali committed culpable homicide amounting to murder of Shri Haren Pandya on dt.26.3.2003 at Law Garden, Ahmedabad for he being the political leader of Hindus and thereby they all committed offence under section 302 read with section 120-B of IPC and/or offence under section 3 (1) read with section 3 (3) of POTA? (4) Whether the prosecution proves beyond reasonable doubt that the accused carried, possessed and used the arms and ammunitions for committing the aforementioned acts in pursuance of the criminal conspiracy and thereby committed offences under the Arms Act? (5) Whether the prosecution proves beyond reasonable doubt the possession of unauthorized arms in the notified area and thereby committed the offence under section 4 of POTA?” 4. After elaborate analysis and discussion of the evidence, it is concluded in the impugned judgment that prosecution succeeded in proving the attack with pg j g p p g fire arm on Shri Jagdish Tiwari (PW 39) on 11.3.2003 and in identifying A-1 and A-3 as the persons who, pretending to be customers, had opened fire at him. 4.1 As for the second case of murder of Shri Pandya, the trial Court, relying upon corroboration by Shri Snehal (CW.1) Ex. 876, believed the version of sole eye witness, namely, Anilram Yadram Patel (PW 55) Ex.386; and after elaborate examination of other evidence, opinion of experts, discovery and recovery of weapons, mobile phone records, internet communication excerpts, confessions and deposition of the investigating officer (I.O.), came to the conclusion that the offences as aforesaid were committed by the accused persons. The conclusions of the trial Court are recorded in the following terms: “32. From the entire discussion held hereinabove, this evidence can be summed up briefly as follows: 1. To avenge the atrocities perpetrated on the Muslims in the aftermath of the Godhra incident where hundreds of them lost their lives, livelihood as well as valuables, religious leaders of Muslim community used the aroused feelings of youth of this community to retaliate against the Hindus. 2. The incident of burning of coach in Sabarmati Express at Godhra Railway Station on dt.27.02.2002 resulted into large scale rioting in the State and an atmosphere of vertical divide between the two communities could be witnessed.
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